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New Hate Crime Act is needed to address vast ‘justice gap’, says major Sussex study
The law on hate crime needs to change, say academics at the University of Sussex, following the publication of a 24-month empirical study. Only four percent of an estimated 110,000 hate crime offences reported to the police result in a conviction and a declared ‘sentence uplift’ under hate crime legislation.
The “Hate Crime and the Legal Process: options for law reform” report, which is launched today (17 October) at the House of Commons, saw the authors review over 100 cases and conduct 71 in-depth interviews with police, prosecutors, the judiciary, independent barristers, victims, local authorities, and charity groups.
Dr Mark Walters and colleagues at the University of Sussex say at the very least the current law needs to be amended to make sure victims of hate crime of all characteristics – racial, religious, sexual orientation, disability and transgender identity - are protected equally under the legislation. Ideally, however, a new Hate Crime Act should be introduced that would aggravate any criminal offence that demonstrates hostility towards, or is committed by reason of, the victim’s (presumed) race, religion, sexual orientation, disability or transgender identity.
As such the key recommendation of the report is that a new Hate Crime Act is enacted. Failing that, the authors make three other recommendations:
1) That, as a minimum, Parliament amend s. 28 of the Crime and Disorder Act to include sexual orientation, disability and transgender identity
2) That the offences of affray, violent disorder, theft and handling stolen goods, robbery, burglary, fraud and forgery, s. 18 grievous bodily harm, homicide offences and all sexual offences are added to the Crime and Disorder Act
3) That s. 28 of the Crime and Disorder Act is amended to remove the word “motivation” and to replace this with a new “by reason” test
The study also makes recommendations for the police, prosecutors and the judiciary for improving their practice.
Dr Walters, a Reader in Criminal Law and Criminal Justice at the University of Sussex, says:
“Our study reveals that a vast justice gap exists for victims of hate crime. Out of an estimated 110,000 hate crimes which are reported to the police every year, just over 4,000 go on to receive a declared sentence uplift under hate crime legislation after conviction.
“This 24-month empirical study found that, while vast improvements have been made over the past 10-15 years (especially within the CPS), there remain significant inadequacies in relation to the collation of evidence, procedural decision making, legal interpretation of the statutory provisions, and sentencing practices.
“Hate crime laws are still too frequently ignored or incorrectly applied by the courts. Without legal reform, along with amendments to procedure and new options for alternative justice, we believe that many victims and defendants will be denied justice."
The study found particular problems in relation to:
- the consistent application of sentencing provisions under ss. 145 & 146 of the Criminal Justice Act 2003;
- a reluctance in parts of the judiciary to accept “demonstrations of hostility” committed in the “heat of the moment” as falling within the scope of the legislation;
- the potential for “double convictions” in the Magistrates’ Courts;
- diverging approaches to calculating “uplifts” for enhanced sentencing;
- the potential for “double counting” of hostility at sentencing, due to the fragmented nature of the legislation;
- and a systemic failure to identity and “flag” disability hate crimes, as well as a reluctance amongst many judges and legal practitioners to accept evidence of targeted violence against disabled people as proof of “disability hostility”.
The authors therefore recommend that:
- the Government legislates to create a new Hate Crime Act that consolidates the existing fragmented framework which would prescribe any offence as “aggravated” in law where there is evidence of racial, religious, sexual orientation, disability and/or transgender identity hostility;
- the judiciary makes greater use of community and rehabilitation programmes that are designed to tackle the root causes of prejudice and hate as part of offenders’ “uplift”;
- and for the many thousands of cases that never reach court, that the police and CPS should make greater efforts to offer restorative solutions to ensure that more is being done to address the individual, community and societal harms that are caused by hate crime.
1. Analysis of the Crime Survey for England and Wales (CSEW) suggests that approximately 110,160 hate crimes are reported to police each year. The most recent police statistics recorded 62,518 hate crimes between 2015/16. This suggests that only 57% of those incidents reported to the police are recorded as hate crimes. During the same year, the CPS prosecuted 15,442 hate-based offences, of which 12,846 resulted in a conviction. The CPS recorded the announcement of sentencing uplifts in court as 33.8% of total hate crime convictions, which equates to 4,342 cases. If this data is accurate, it means that out of an approximate 110,160 reported hate crimes, only 4,342 offences (4%) resulted in a sentence uplift based on identity-based hostility.
2. The study included: (a) an assessment of existing policies and publically available statistics; (b) a review of over 100 reported cases; and (c) 71 in-depth, qualitative semi-structured interviews with “hate crime coordinators” and “hate crime leads” at the Crown Prosecution Service (CPS), District (Magistrate’s Court) and Circuit (Crown Court) Judges, independent barristers, victims and staff at charitable organisations that support victims of hate crime, police officers, and local authority minority group liaison staff.
3. A ‘sentencing uplift’ is what a defendant can receive when convicted of a hate crime. It has the effect of increasing the sentence. Interviewees in the study reported that a sentence uplift increases the sentence by 20 – 100%.
4. A double conviction is when a defendant is convicted of two offences for the same act. For example, a defendant might be charged and then convicted of both assault and racially aggravated assault because these charges cannot be presented as alternatives.
5. The report sets out four options for law reform:
First option: That, as a minimum, Parliament amend s. 28 of the Crime and Disorder Act to include sexual orientation, disability and transgender identity. Currently the only characteristics it includes are racist and religious. Just over half of the interviewees who spoke about law reform said they believed that all five characteristics should be protected equally under the Crime and Disorder Act.
Second option: That, based on the statistics and analysis of interviewee data, the following offences should be considered for inclusion under the Crime and Disorder Act: affray, violent disorder, theft and handling stolen goods, robbery, burglary, fraud and forgery, s. 18 grievous bodily harm, homicide offences and all sexual offences.
Third – and preferred - option: That, ideally, a new Hate Crime Act is enacted. The current framework of hate crime legislation is complex and fragmented. This would be based on the relevant provisions currently contained in the Crime and Disorder Act 1998, but extending to all categories of crime.
A single Act could contain all the relevant provisions for hate crime under one code that aggravated any offence where there is sufficient evidence of hostility. The sentencing approach for the aggravated offences would be the same as for the basic offence. The legislation would mirror ss. 145 and 146 CJA in that the courts “must” take into consideration hostility and state in open court how the sentence has been affected by the aggravation.
Fourth option: That - because the study has shown that the enforcement agencies and the judiciary rarely collate, or accept, evidence of a “motivation” of hostility (especially in disability hate crime cases) - the law should be amended at s. 28 (or equivalent in a new Hate Crime Act) so that the provision reads as follows:
(1) An offence is racially or religiously aggravated [or aggravated in relation to disability, sexual orientation or transgender identity] for the purposes of sections 29 to 32 if
(a) at the time of committing the offence, or immediately before or after doing so, the offender demonstrates towards the victim of the offence hostility based on the victim’s membership (or presumed membership) of a racial or religious group, or based on the victim’s sexual orientation (or presumed sexual orientation), disability (or presumed disability), or transgender identity (or presumed transgender identity).
(b) the offence is committed by reason of the victim’s membership (or presumed membership) of a racial or religious group, or by reason of the victim’s sexual orientation (or presumed sexual orientation), disability (or presumed disability), or transgender identity (or presumed transgender identity).
6. The report is written by Mark A. Walters, Susann Wiedlitzka and Abenaa Owusu-Bempah, with Kay Goodall, at the University of Sussex. (Abenaa Owusu-Bempah is now at the London School of Economics)